MATHAI OUSEPH Vs. NARAYANA PILLAI

JUDGEMENT

(1.) THE appellant defendant disputes the whole of the amount awarded to the plaintiff by the decree of the lower appellate court, the decree appealed against, and, by reason of Explanation (3) to S. 52 of Kerala act of 10 of 1960, the amount awarded by the lower appellate court for interest accrued from the date of the institution of the suit up to the date of its decree must be deemed to be part of the subject matter of the appeal. THE explanation applies whether the appellant is a plaintiff or a defendant. When a defendant appeals his claim is that the decree against him be set aside, and, in the case we are here considering the claim includes also the interest awarded for the period subsequent to the institution of the suit up to the date of the decree appealed against. That relinquishment of interest can only be by a plaintiff does not make the explanation any the less applicable to a defendant's appeal. When a plaintiff in an appeal relinquishes any part of the interest that has been disallowed to him that is not and cannot be the subject matter of his appeal and it is to ensure by way of abundant caution that that is also not taken in by the deeming clause in the explanation that the saving, "except when such interest is relinquished" has been added.

(2.) AS pointed out by me in S. A. 954/65 the statute considered in State of Maharashtra v. Mishrilal (AIR. 1964 SC. 457) had no provision like our explanation making subsequent interest, subject matter of the appeal.